If you are a grandparent facing the challenging circumstances of a break-up in your family group, you may be worried about your right to continue seeing much-loved grandchildren. Unfortunately, after separation or family conflict, some grandparents may only see their grandchildren at crowded school events or from the sideline at sporting occasions—if at all.
Fortunately, in Australia, grandparents may approach a court for orders allowing them to spend time with their grandchildren or express concerns about their welfare.
Table of Contents
- What rights exist for grandparents?
- How do grandparents apply for parenting orders?
- What is the role of mediation?
- Getting legal advice before court
- Exceptions and urgent cases
- Conclusion
What Rights Exist for Grandparents and Are They Automatic?
While grandparents do not have automatic rights to see their grandchildren, they do have legal options.
The Family Law Act allows a grandparent (or other person concerned for a child’s care, welfare, or development) to apply for a parenting order. The court’s primary consideration will always be the child’s best interests.
The court will assess:
- The arrangements necessary to promote the safety of the child and all individuals responsible for the child’s care
- Any views expressed by the child
- The child’s needs, encompassing developmental, psychological, emotional, and cultural aspects
- The capacity of each person with parental responsibility, whether current or proposed, to meet the child’s needs
- The benefits to the child in having a meaningful relationship with their parents and significant others
- Any other factors that the court deems relevant to the specific circumstances of the child
The courts have previously emphasised the importance of children having contact with as much of their wider family as possible and of growing up feeling part of an extended and supportive family group.
How Do Grandparents Apply for Parenting Orders?
Parents who are separating often make plans for the future care of their children informally and agree on where their children will live. Some may draw up a written parenting plan. If you are concerned about your future contact with your grandchildren, you can ask to be included in these plans.
These plans can be formalised by registering them with the court as consent orders. Parenting orders must be followed by everyone involved.
If you cannot agree with the parents about your future contact with your grandchildren, you can apply to the court yourself. The court will determine what arrangements are in the child’s best interests and may make orders for the child to:
- Live with a grandparent
- Spend time with a grandparent
- Communicate with a grandparent
What Is the Role of Mediation?
In most cases, the law requires families to attend family dispute resolution (FDR) before going to court. A trained mediator will assist in discussing differences and reaching an agreement.
You will need a section 60I certificate from an accredited dispute resolution practitioner to proceed to court if no agreement is reached.
Getting Legal Advice Before Court
If mediation fails, it is important to obtain legal advice before going to court. You’ll need to understand:
- The strength of your case
- What documents (such as affidavits) you will need
- What orders you should ask for
- Which court to lodge your case in
- The likely costs of taking legal action
Even if you choose to represent yourself, legal advice is strongly recommended when preparing your case. Always keep in mind that the child’s best interests come first.
Exceptions and Urgent Cases
In some cases, grandparents may also apply to the Children’s Court to have children placed in their care. You may apply whether the parents are together or separated.
You do not need a mediation certificate if:
- The matter is urgent
- There is a risk of family violence
- A party cannot participate due to disability or other valid reason
If the parents strongly oppose the court orders sought by grandparents, a family consultant may be appointed by the court. This consultant will prepare a family report to help the court decide on the parenting order.
Protect Your Relationship with Your Grandchildren
Family law and children’s matters are complex and emotionally charged. When a relationship between parents ends, the impact often extends to grandparents who have played a key role in their grandchildren’s lives.
This is general information only. You should seek legal advice tailored to your circumstances.
If you or someone you know wants more information or legal advice, please call 03 5747 8251 or email [email protected].